What Constitutes a Conviction for Immigration Purposes?

Failure to understand all that is encompassed by immigration law’s definition of “conviction” may lead to unanticipated immigration consequences, some of which could be severe. The Immigration and Nationality Act, commonly referred to as the INA, provides its own definition for when a conviction has occurred. For immigration purposes, a conviction occurs if:

  • A judge or jury has found the foreign national guilty, or the foreign national entered a plea of guilty or nolo contendere, or the foreign national admitted sufficient facts to warrant a finding of guilt, AND
  • Some form of punishment, penalty, or restraint is imposed on the person.[1]

Simply put, for immigration purposes a conviction has occurred if there has been a guilty plea or a finding of guilt, plus any imposition of probation, fine or jail.

It is important to understand that immigration law defines the term “conviction” more broadly than state law. What is the effect of immigration and state law’s differing definitions of “conviction”? It means that although an offense may not be considered a conviction under state law it may still qualify as a conviction for immigration purposes. A common scenario where this occurs is when state law provides some form of rehabilitative relief. Rehabilitative relief occurs when a state withdraws a guilty plea or dismisses criminal charges because a defendant complied with certain requirements imposed by the state.

For example, Joe is arrested for the theft of a shirt valued at thirty dollars. Joe pleads guilty to the charge of petty theft. Joe completes a court mandated first-time offender class and fifteen hours of community service. Upon Joe’s completion of the course and community service, the court dismisses the charge and expunges the record. For state law purposes, Joe’s conviction has been erased or eliminated. Conversely, Joe’s conviction is not eliminated for immigration purposes.

Sometimes, criminal attorneys advise their noncitizen clients that certain rehabilitative relief programs, such as completing a first time offender’s course, would not be considered a conviction. While this may be true for state law purposes, for immigration purposes the opposite may be true and it would be considered a conviction. For any noncitizen facing a criminal charge, it is advisable to consult with qualified legal counsel and carefully consider not only the state law implications but also potential immigration consequences from the outset.

[1] INA § 101(a)(48)(A).

By Zachary Taylor

Zachary Taylor advises employers and individuals on all aspects of U.S. immigration law, with a particular focus on nonimmigrant visas. His practice includes filing petitions and applications for immigration benefits, responding to requests for evidence issued by government agencies, and drafting motions and appeals.